Editor's Note :

Editor's Note :

On Monday at 9:30 a.m. we expect the Court to issue orders from the October 31 Conference; we do not expect the Justices to issue any decisions on the merits.
Our list of "Petitions to watch for that Conference is here.

Kali Borkoski Manager

Posted Wed, November 2nd, 2011 9:21 am

Proposition 8 and DOMA

Today in the Community, we are discussing whether the Court is likely to get involved in the disputes over Proposition 8 and the Defense of Marriage Act and, if it does get involved, what it will do.

In Perry v. Brown, the California Supreme Court is considering whether the official proponents of Proposition 8, a ballot initiative that prohibits same-sex marriage in California, have standing to defend the constitutionality of the initiative when state officials have declined to do so.  If it concludes that the proponents do have standing, the matter could get back on a track heading toward the Court sometime soon.  And in July 2010, in Gill  v. Office of Personnel Management , U.S. District Judge Joseph L. Tauro held that Section 3 of the Defense of Marriage Act – which defines marriage for federal purposes as a union between a man and a woman –  is unconstitutional. That case is now the first of the DOMA cases to reach the courts of appeals; the plaintiffs-appellees filed their brief in the First Circuit on October 27. Other DOMA cases have also been percolating in district courts, including Golanski  v. Office of Personnel Management  and Windsor v. United States.  

This summer the blog hosted an online symposium that addressed various questions relating to both the Proposition 8 and DOMA litigation.


  • Kali Borkoski – 0 Promoted Comments

    In this thread, discuss whether the Supreme Court should and will take up issues related to same-sex marriage in the next few years.

    • Erwin Chemerinsky – 3 Promoted Comments

      The Supreme Court should, and I believe will, hold that the Constitution protects a right for marriage equality for gays and lesbians. The prohibition of same-sex marriage denies gays and lesbians equal protection and violates the fundamental right to marry. Having debated this issue many times and having read the various briefs, I always am struck by the lack of any legitimate government interest for denying gays and lesbians of the right to marry. At the oral argument in the Proposition 8 case, Judge Randy Smith twice asked the attorney defending the initiative as to what legitimate government interest is served by the prohibition of marriage equality. None is apparent. Mr. Cooper focused on how marriage is about procreation. But gays and lesbians will procreate with or without marriage – by adoption, surrogacy, and artificial insemination. Marriage is perceived as benefiting children by providing for family stability. Children of gay and lesbian couples should have this benefit too. Gays and lesbians should have the same right to express love and commitment, the same benefits under laws, the same ability to experience the joys and disappointments of marriage that heterosexuals always have had.

    • Brian Raum – 1 Promoted Comment

      With all of the challenges to DOMA and the Perry case making their way through the federal court system, it seems inevitable that one or more of these cases will be heard by the Supreme Court in the next couple of years. This is especially true should those seeking to redefine marriage prevail at the court of appeals level and would be even more likely if a circuit split on the issue develops.

      But should the Supreme Court enter the fray in this most controversial of social debates? There has been much discussion in recent years concerning the proper role of the Court when it comes to crafting social policy. But this is no garden variety social issue. Marriage is our most foundational social institution and the redefinition of marriage in one state has profound constitutional and interstate implications. Consequently, the Supreme Court must at some point weigh in.

      But the risk of Supreme Court review is great for both sides of the issue. An adverse ruling (for those who support natural marriage) could have devastating effects nationwide for those states that have laws protecting marriage. Depending on its scope, a sweeping adverse decision would have the potential to strike down all laws that define marriage as the union of a man and a woman.

      Conversely, a decision upholding the constitutionality of marriage as historically understood would severely take the wind out of the sails of those who argue that it is irrational to believe that the government has legitimate interests in maintaining the all-but-universal definition of marriage. Moreover, should the Supreme Court confirm that rational basis review applies to these challenges (which it should), that will all the more set back the homosexual legal agenda on multiple levels.

      It will be quite interesting to see how the battle for marriage plays out, and one cannot help but feel that this is a critical crossroads in the history of our country and our world.

  • Kali Borkoski – 0 Promoted Comments

    In this thread, discuss whether Prop. 8 or DOMA provides the better vehicle in which to take up these questions.

    • Larry Reich – 1 Promoted Comment

      I think the Supreme Court should and will take up issues related to same-sex marriage in the next few years. States that have not adopted same-sex marriage laws and do not wish to do so need guidance on their constitutional rights either to refrain from doing so or enact laws permitting the voluntary adoption of civil unions through which same-sex couples can acquire the economic and social benefits of marriage without the name “marriage.” I believe this should be considered to satisfy any equal-protection arguments and, at the same time, satisfy Tenth Amendment rights of the states. I believe Prop 8 is by far the better and fairer vehicle for taking up these questions. The use of DOMA, which may precede Prop 8 to the Court, is one-sided and incomplete, and has been urged by advocates of same-sex marriage per se.

      I think the Court, if it were to take up the constitutionality of DOMA prior to taking up Prop 8 is likely to hold it unconstitutional, though I have advocated in an article in publication in the NYU Review of Employee Benefits and Executive Compensation that it should do so only with protection for states that have or enact civil union laws similar to the one currently in effect in New Jersey.

    • Brian Lusignan – 3 Promoted Comments

      Based on my admittedly brief review of these two cases, the DOMA cases appear to provide a better vehicle for review of the merits of the same-sex issue. Perry v Brown includes the thorny standing hurdle. Also, Perry strikes me as a case of primarily state concern. California is unique in its three-tiered system of domestic benefits (i.e. — heterosexual married, homosexual married before Prop 8, homosexual domestic partners after Prop 8). Of course, in Perry a lot will turn on the narrowness or breadth of the opinions of the California Supreme Court and the Ninth Circuit.

      The DOMA cases, on the other hand, directly implicate federal laws and rights. Given the increasing number of states that recognize same sex marriage, whether the federal government can continue to refuse to recognize these lawful marriages strikes me as a national issue that the Supreme Court should weigh in on, one way or the other.

  • Kali Borkoski – 0 Promoted Comments

    In this thread, discuss how you think the Court is likely to resolve the constitutionality of DOMA.

    • Andrew Koppelman – 1 Promoted Comment

      DOMA is doomed

      The Supreme Court will probably strike down the Defense of Marriage Act (DOMA), which indiscriminately withholds federal recognition from same-sex marriages for all purposes – Social Security, health insurance for federal employees, family benefits for soldiers killed in action. Doing so would not be especially bold, since it won’t bring same-sex marriage to any state that does not want it. Justice Kennedy, the swing vote on the Court, wrote the majority opinion in a case that held a very similar law unconstitutional.

      Romer v. Evans (1996) invalidated an amendment to the Colorado Constitution that authorized anyone in the state to discriminate against gay people. DOMA’s definitional provision and the law invalidated in Romer have telling similarities. Like the Colorado amendment, DOMA “identifies persons by a single trait [membership in a same-sex marriage] and then denies them protection across the board.” For the first time in American history, DOMA created a set of second-class marriages, valid under state law but void for all federal purposes. The indiscriminate exclusion of a class of valid state marriages from all federal recognition is “unprecedented in our jurisprudence.” DOMA cuts off benefits to a targeted, politically unpopular group, and it does so in a remarkably broad and undifferentiated way, just like the law in Romer. It is likely to meet the same fate.

      • Max Power – 1 Promoted Comment

        As a fairly active follower of the Court, I agree that DOMA will quite likely be struck down. However, the more interesting question in my mind is the likely vote tally. Given DOMA’s unprecedented intrusion into the states’ domestic-relations sphere, I would expect a staunch federalism buff such as Thomas vote to strike it down, alongside Kennedy and the four “liberal” Justices (perhaps in a separate concurrence that stresses federalism and eschews the Romer rationale). I find it hard to predict how the remaining three Justices will come down, although I have a gut feeling Alito would vote to uphold DOMA. Scalia is something of a wild card when it comes to federalism (see Raich), and I can’t guess what Roberts would do.

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